The U.S. Constitution’s First Amendment applies to the Alaska Constitution’s disloyalty clause. The disloyalty clause says that no person who belongs to a party or organization that advocates the overthrow by force or violence of the United States or the State shall be qualified to hold public office. During the ‘50s, ‘60s and early ‘70s, the U.S. Supreme Court decided that the First Amendment precludes prosecuting or firing someone for that person’s “mere membership” in an organization that advocates the overthrow by force or violence of the United States; it’s necessary to show that the person actively did things to promote the overthrow.
At trial, highly competent attorneys were unable to prove that David Eastman participated in the Oath Keepers’ insurrection or did anything else to overthrow the U.S. government. Therefore, the First Amendment precludes disqualifying Rep. Eastman from office.
Instead of trying to enforce the disloyalty clause against Rep. Eastman, the Legislature should propose a constitutional amendment that changes the disloyalty clause in the way that Hawaii did many years ago. As James Brooks pointed out in an Alaska Beacon article, people in Hawaii were so concerned about the First Amendment problems with Hawaii’s disloyalty clause that they eventually amended it so that it applied only to people who had been convicted of trying to overthrow the government.
We should do the same thing. If convicted criminal Stewart Rhodes were to move to Alaska and try to run for office, he’d be disqualified. But Rep. Eastman has not done anything deserving disqualification, and so long as his constituents insist on reelecting him, he should stay in office.
— Mark Regan
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